United States v. Enrique Quintero

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 10, 2020
• Docket: 19-10009
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 10 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10009

Plaintiff-Appellee, D.C. No. 5:11-cr-00711-EJD-1

v. MEMORANDUM* ENRIQUE LOPEZ QUINTERO,

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Edward J. Davila, District Judge, Presiding

Submitted March 6, 2020**

Before: FARRIS, TROTT, and SILVERMAN, Circuit Judges.

Enrique Lopez Quintero appeals pro se from the district court’s order

denying his motion for a sentence reduction under 18 U.S.C. § 3582(c)(2). We

have jurisdiction under 28 U.S.C. § 1291. We review de novo whether the district

court had authority to reduce Quintero’s sentence under section 3582, see United

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). States v. Wesson, 583 F.3d 728, 730 (9th Cir. 2009), and we affirm.

Quintero contends that he is eligible for a sentence reduction because

Amendment 782 to the Sentencing Guidelines, which amended the drug quantity

tables in U.S.S.G § 2D1.1, lowered the Guidelines range contained in his binding

plea agreement. However, even assuming arguendo that Quintero’s sentence was

“based on” the Guidelines range calculated in the plea agreement, he would still

not be eligible for a reduction because Amendment 782 did not lower the

Guidelines range “applicable to” him. See U.S.S.G. § 1B1.10(a)(2) (sentence

reduction is not authorized under section 3582(c)(2) unless a listed amendment

lowers the Guidelines range “applicable to” the defendant). The “applicable”

Guidelines range is the correctly calculated, pre-variance range. See U.S.S.G.

§ 1B1.10(a)(1) & cmt. n.1(A); United States v. Pleasant, 704 F.3d 808, 811-12

(9th Cir. 2013), overruled on other grounds by United States v. Davis, 825 F.3d

1014 (9th Cir. 2016). Here, there is no dispute that Quintero was properly

determined to be a career offender under the Guidelines. Thus, as the district court

correctly concluded, the applicable range was the career offender range. Because

that range was not lowered by Amendment 782, Quintero is not eligible for a

sentence reduction. See 18 U.S.C. § 3582(c)(2); Pleasant, 704 F.3d at 812.

AFFIRMED.

2 19-10009